ORDER DENYING IN PART AND GRANTING IN PART
DEFENDANTS' MOTIONS TO DISMISS OR COMPEL
ARBITRATION

THOMAS
L. PARKER UNITED STATES DISTRICT JUDGE.

Defendants
move to dismiss the complaint or, in the alternative, to
compel arbitration. (ECF Nos. 29 & 34.) Plaintiffs urge
this Court to deny the motion to dismiss and to maintain
jurisdiction over their claims by arguing that the contract
containing the arbitration clause is void. (ECF No. 48.) For
the reasons below, the Court GRANTS Defendants' request
to compel arbitration as to Chad Larkin's claims. But the
Court DENIES the Motion to Dismiss on Genny Larkin's
claims.

BACKGROUND

Plaintiffs
Chad and Genny Larkin sued Jonathan Day (“Day”),
Pilgrim Films & Television, L.L.C., d/b/a Pilgrim Media
Group and Operations (“Pilgrim”), and Discovery,
Inc. (“Discovery”) for harm suffered during the
filming of “Street Outlaws Memphis.” (ECF No. 1.)
Street Outlaws Memphis is a television show produced by
Pilgrim for Discovery. (Id. at PageID 3.) The show
purports to portray illegal street-racing in and around
Memphis, Tennessee. (Id.) Day hosts the show and he,
along with the other “Memphis Street Outlaws, ”
invite outside racers to compete in street racing events.
(Id.) Chad Larkin (“Mr. Larkin”) was one
of those outside racers who allegedly participated in
September 2017. (Id. at PageID 4- 5.) To increase
the show's drama and ratings, Defendants allegedly
encouraged the Memphis Street Outlaws and the outside racers
to act angry and “talk trash” to one another.
(Id. at PageID 5-6.)

Unsurprisingly,
the theatrics allegedly turned real when Mr. Larkin's
taunts got under Day's skin. (Id.) Tensions ran
high as one of the Memphis Street Outlaws “jumped the
start signal”[1] and the outside racer chose not to follow,
leading to a victory for the outside racer and a
disqualification for the Memphis Street Outlaw. (Id.
at PageID 6-7.) The Complaint claims that Mr. Larkin began to
taunt Day and the Memphis Street Outlaws--as requested by the
production staff. (Id. at PageID 7.) In response Day
and “Bounty Hunter, ” a member of the Memphis
Street Outlaws, allegedly attacked Mr. Larkin. (Id.
at PageID 9-10.) Mr. Larkin alleges suffered extensive bodily
injuries during the attack. (Id.) Genny Larkin
(“Mrs. Larkin”), alleges that she also suffered
physical and emotional injuries when a female member of the
Memphis Street Outlaws attacked her when she tried to help
her husband. (Id. at PageID 10.) This attack
undergirds the Complaint.

Defendants
counter these allegations by arguing that this Court should
enforce the Arbitration Provision in the Appearance Release
(the “Release”) Mr. Larkin signed when he arrived
at the filming location. (Id. at PageID 72-73.) By
contrast, Plaintiffs argue that the Arbitration Provision is
not enforceable because the Release is void. (ECF No. 48 at
PageID 153.) In fact, they assert that the Release as a whole
(including the Arbitration Provision) is void because it is
an agreement to commit illegal activities. (Id.)
Plaintiffs assert also that the Arbitration Provision is not
severable from the Release and, importantly, that this Court
should determine whether the Release is valid rather the
arbitrator making that decision. (Id.) On the other
hand, Defendants argue that, at a minimum, the Arbitration
Provision is severable and that the Larkins'
claims-including the validity of the Release should be
referred to arbitration.

LEGAL
STANDARD

The
Federal Arbitration Act (“FAA”) is the starting
point for this Motion. Congress enacted the FAA “to
overcome judicial resistance to arbitration.”
Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S.
400, 443 (2006). The FAA provides a way for one to petition a
court to compel arbitration under a contract. See 9
U.S.C. § 4. Before compelling arbitration, the court
first determines whether the parties agreed to arbitrate.
Stout v. J.D. Byrider, 228 F.3d 709, 714 (6th Cir.
2000). Next, the court decides the scope of that agreement.
Id. Finally, the court must decide whether to stay
the remainder of the case if not all the claims are referred
to arbitration. Id.

Section
2 of the FAA reflects the Act's breadth. This section
states:

A written provision in . . . a contract evidencing a
transaction involving commerce to settle by arbitration a
controversy thereafter arising out of such contract . . .
shall be valid, irrevocable, and enforceable, save upon such
grounds as exist at law or in equity for the revocation of
any contract.

9 U.S.C. § 2. The Supreme Court has interpreted this
provision as “reflecting both a liberal federal policy
favoring arbitration” and the “fundamental
principle that arbitration is a matter of contract.”
AT&T Mobility LLC v. Concepcion, 563 U.S. 333,
339 (2011) (internal quotations and citations omitted). So
courts place arbitration agreements on “equal footing
with other contracts.” Rent-A-Ctr., W., Inc. v.
Jackson, 561 U.S. 63, 67 (2010). This “ensures
that private arbitration agreements are enforced according to
their terms.” Volt Info. Scis., Inc. v. Bd. of Trs.
of Leland Stanford Junior Univ., 489 U.S. 468, 469
(1989). And the FAA is a body of federal substantive law that
preempts state laws. Southland Corp. v. Keating, 465
U.S. 1, 12-13 (1984).

Despite
the FAA's broad reach, a savings clause in § 2
“permits agreements to arbitrate to be invalidated by
‘generally applicable contract defenses, such as fraud,
duress, or unconscionability,' but not by defenses that
apply only to arbitration or that derive their meaning from
the fact that an agreement to arbitrate is at issue.”
Concepcion, 563 U.S. at 339 (quoting
Doctor's Associates, Inc. v. Casarotto, 517 U.S.
681, 687 (1996)). Parties challenging an arbitration
provision under this savings clause may do so in two ways.

First,
one can challenge the validity of the arbitration clause
itself. Cardegna, 546 U.S. at 444. A challenge
singling out the arbitration clause itself, such as fraud in
the inducement to arbitrate, raises “an issue which
goes to the ‘making' of the agreement to arbitrate,
'” which falls within the courts authority to
decide. Prima Paint Corp. v. Flood & Conklin Mfg.
Co., 388 U.S. 395, 403-04 (1967). In effect, these
disputes concern the applicability of the FAA to the
parties' contract. See id. at 404.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The
second challenge is to the enforceability or validity of the
contract as a whole. Id. That said, arbitrators, not
the courts, decide challenges to the contract&#39;s validity
or enforceability apart from challenges to the formation of
the contract. See Cardegna, 546 U.S. at 445-46;
Fazio v. Lehman Bros., Inc., 340 F.3d 386, 393 (6th
Cir. 2003); Day v. Fortune HiTech Marketing, Inc.,
536 Fed.Appx. 600, 604 (6th Cir. 2013). This is because,
&ldquo;as a matter of substantive federal law, an arbitration
provision is severable from the remainder of the
contract.&rdquo; Cardegna. at 445-46. So a defective
contract may still ...

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